Blow for DP Ruto as Judges allow old evidence recorded by witnesses

[Ab-Titchaz]

Blow for DP Ruto as judges allow old evidence recorded by witnesses

Deputy President William Ruto suffered a setback in his trial at the ICC after trial judges allowed the prosecution to use prior recorded statements of hostile witnesses.

The ruling came on a day the battle between ICC Prosecutor Fatou Bensouda and President Uhuru Kenyatta's government was renewed.

The ICC Appeals Chamber did not find that the Kenyan government failed to co-operate with the prosecution on President Kenyatta's case.

However, the decision to order the trial judges to reconsider their ruling - rejecting the prosecutor's application for referral of the matter to the Assembly of States Parties - kept Bensouda's case alive. The dispute stems from claims that the Kenyan government failed to comply with a request to produce financial and other records relating to Uhuru.

International Criminal Court (ICC) trial judges will reconsider the prosecution's claims that the Kenyan government obstructed its investigations into the case against President Uhuru Kenyatta prompting the withdrawal of the charges against him.

Standard Digital News - Kenya : Blow for DP Ruto as judges allow old evidence recorded by witnesses

 

[Julius Kaisari]

Mount Kenya Mafia ilimalisa mchezo.

 

[Ab-Titchaz]

News from Kenya Cases at the International Criminal Court

by Tom Maliti
August 20, 2015

ICC Admits Statements of Five Witnesses as Evidence Against Ruto and Sang


Trial judges of the International Criminal Court (ICC) have allowed statements of five witnesses who recanted them in court or failed to testify to be admitted as evidence against Deputy President William Samoei Ruto and former journalist Joshua arap Sang.

Trial Chamber V(a), in redacted decisions made on Wednesday, declined to admit the statements of 10 other witnesses as evidence against Ruto and Sang. The prosecution had applied for the statements of as many as 16 witnesses to be admitted as evidence. The judges of Trial Chamber V(a), however, disagreed on which legal provision was applicable in reaching their decision to admit or not as evidence the statements the witnesses recorded with prosecution investigators.

Judges Olga Herrera Carbuccia and Robert Fremr issued the majority decision in which they said that Rule 68 of the court's Rules of Procedure and Evidence was the correct provision to use to determine the merits of the prosecution's application. Carbuccia and Fremr were of the view that Article 69 of the ICC's founding law, or the Rome Statute, did not apply in this case. This was the alternate provision the prosecution had proposed could be used in assessing their application.

Presiding Judge Chile Eboe-Osuji disagreed and in his separate opinion explained why he thought Article 69(3) was the appropriate provision to use when weighing the merits of the application.

Four of the witnesses whose statements have been admitted as evidence following Wednesday's decisions had been compelled by court order to testify. Once they appeared before the chamber via video link, each of the four witnesses recanted in part or in whole their previous statements to prosecution investigators and they ended up being declared hostile prosecution witnesses.

Trial Chamber V(a) said they admitted the recanted statements as evidence because both prosecutors and defense lawyers had the opportunity to question the witnesses about the contradictions between their testimony in court and their previously recorded statements. The chamber also said they allowed the statements to be admitted as evidence because during the course of the witnesses' testimony, allegations of witness interference were made, including in some cases allegations of money being offered to the witnesses to change their statements to the prosecution.

The particular witnesses are not named nor are their court-given pseudonyms used in either Trial Chamber V(a)'s majority decision or in the separate opinion of Judge Eboe-Osuji.

But during the testimony of Witness 604, Witness 495, and Witness 516 these allegations may have been heard in private session. In addition to each of them being declared hostile, each witness was also granted partial immunity from prosecution from any offenses that involved interfering with, intimidating or bribing witnesses.

These are offenses under Article 70 of the Rome Statute. They were not granted immunity from perjury, which is also an offense under Article 70. In exchange the three witnesses were expected to tell the chamber all they knew about any attempts to interfere with witnesses in any way and their involvement. Trial Chamber V(a) approved this deal and the witnesses' testimony on the matter was heard entirely in private session.

In the case of the fourth witness, Trial Chamber V(a) concluded that there were allegations of witness interference, but what may have led the chamber to reach such a conclusion is unclear, because significant sections concerning this witness are redacted in the main decision. What is clear from the decision is that the witness is among the five who have been declared hostile prosecution witnesses so far.

The fifth witness whose statement to prosecution investigators has been admitted as evidence did not testify in court. In their decisions, the chamber said they are satisfied that all efforts were made to get the witness to court and testify, including involving Kenyan authorities and those of an unnamed country to trace the witness.

"The Chamber is, however, satisfied that the witness is unavailable to testify orally due to obstacles that cannot be overcome with reasonable diligence. In reaching this conclusion the Chamber has had regard, in particular, to the fact that all attempts by the Prosecution to contact or trace the witness [REDACTED] have proved unsuccessful, [REDACTED]. The witness did not appear for testimony on the scheduled date," the judges said in their majority decision.

To date there is only one witness for whom Trial Chamber V(a) issued a public order scheduling a date to testify. This was for Witness 727, who was ordered to be in court on March 23 but never showed. In March, a lawyer representing Witness 727 said he had gone into hiding because he feared for his life if he testified.
While analyzing the reasons for admitting into evidence the statements of the five witnesses, the judges made clear that doing so was not the same as making a judgement on the strength of the statements as evidence.

"In this regard, the Chamber emphasizes that ‘its assessment of evidence for the purpose of admissibility is a distinct question from the evidentiary weight which the Chamber may ultimately attach to admitted evidence in its final assessment once the entire case record is before it, for the purpose of the verdict in the case'," the judges said.

Of the 10 witnesses whose statements the chamber declined to admit into evidence, nine of them did not appear before court. Only one of them testified in court but the judges said there was no evidence of witness interference in the case of that witness.

To back their application that the statements of the nine who did not testify should be admitted as evidence, the prosecution submitted documents to show what they considered evidence of allegations of witness interference involving the nine. The judges decided this was unnecessary. Trial Chamber V(a) said it already had in evidence documents and material detailing allegations of witness interference.

Judge Eboe-Osuji said in his separate opinion that 21 materials had already been admitted into evidence, numbering 288 pages, before the prosecution's application. He said that as part of their application the prosecution submitted an additional 210 materials, numbering 1,669 pages.

"The Prosecution's arguments do not reveal any clear difference between what the admitted evidence and the additional material tend to show, such as would make the latter non-cumulative," wrote Eboe-Osuji, explaining why he agreed with his fellow judges that the additional material was unnecessary.

In their decisions Trial Chamber V(a) did not indicate what next is scheduled in the trial of Ruto and Sang. With Wednesday's decisions, it is expected that the prosecution will indicate when they will close their case since most of the witnesses the prosecution expected to testify have done so.

Ruto and Sang have been on trial since September 2013 on three counts of crimes against humanity for their alleged roles in violence that followed the December 2007 elections in Kenya.

ICC Admits Statements of Five Witnesses as Evidence Against Ruto and Sang | International Justice Monitor

 

[Ab-Titchaz]

How AMINA and UHURU fixed RUTO at ICC through article 68 – He may be jailed for life.

In 2013, a delegation of the Kenyan Government led by Foreign Affairs Cabinet Secretary, Amina Mohamed, successfully pushed for the change on Rule 134 that allowed the use of video technology during proceedings of cases facing President Uhuru Kenyatta and his Deputy, William Ruto, at the International Criminal Court (ICC).

According to Kenya, Rule 134 was important in enabling Uhuru and Ruto be excused from being physically present at The Hague during trial.

Without knowing that their goose is cooked, Amina and her team also accepted the amendment of Rule 68 on Rules and Evidence.

Rule 68, as is popularly known, allowed ICC Chief Prosecutor Fatou Bensouda to use statements by witnesses who either recanted or withdrew from testifying.

On Wednesday, the Judges applied Rule 68 that Kenya yielded into in allowing Bensouda to use recanted testimonies as evidence in the case facing Ruto.

This is a big blow to Ruto's case since Bensouda will now have a lot of ammunition and she may have a real opportunity to send Ruto to prison for life.

Ruto's defence and his supporters should blame Amina Mohamed and President Uhuru Kenyatta who rallied their colleagues to accept amendments to Rule 68 that will now work against Ruto.

 

[Ab-Titchaz]

Deputy President William Ruto's lawyers object to use of prior evidence

By Nzau Musau
Friday, August 21st 2015 at 11:52 GMT +3

Deputy President William Ruto's lawyer Karim Khan. Deputy President William Ruto fought off the introduction of prior recorded statements in the case against him at The Hague-based International Criminal Court (ICC). His lawyer, Karim Khan, accused ICC Chief Prosecutor Fatou Bensouda of losing focus in the case.

Together with his co-accused Joshua arap Sang, Mr Ruto pleaded with the judges not to admit the evidence on the bases that the witnesses had not sworn on it. They said the evidence the six witnesses who refused to testify was inconsistent with the other evidence adduced at the trial stage, and was, therefore, unreliable.

"In the application, the OTP seeks to make the case entirely about interference. This is incorrect. The present trial must remain firmly focused on the charges concerning the 2007 post-election violence in Kenya," Mr Khan said.

He said Ms Bensouda had failed to discharge her mandate of presenting reliable and complete evidence, claiming that apart from the evidence being unsworn, it was also neither video nor audio-recorded.

See also: Jubilee MPs claim ICC in 'regime change' ploy

"This testimony is provided by witnesses whose honesty is a central issue, even at the admission of evidence stage. They have shown a propensity to lie and a willingness to manipulate the court process for gain, yet the OTP insists on them," Khan submitted.

Khan's main opposition to the introduction of the materials, however, lay in his assertions that Rule 68 of the Rules and Procedure of the Court, as amended by the Assembly of State Parties (ASP) on November 27, 2013 was not applicable to the case. He said Kenya, as well as other ASP members, had been assured that the rule would not apply retrospectively to cases "arising out of the Kenya situation" before they agreed to support it.

"On this basis alone, the application should be dismissed in so far as it is predicated upon amended Rule 68," Khan argued.

However, the judges using a litany of legal arguments, found that the rule could be applied in the Kenyan cases including the case against Ruto. On Wednesday, the trial judges ruled in favour of Bensouda and allowed her to use the prior recorded testimony of a number of witnesses who had recanted the same.

Standard Digital News - Kenya : Deputy President William Ruto’s lawyers object to use of prior evidence

 

[Ab-Titchaz]

Why ICC judges admitted recanted witness testimony in Ruto & Sang case

Tuesday, August 25, 2015 - 16:14

By Ishmael Bundi*


The ICC Trial Chamber hearing the case against William Ruto and Joshua Sang gave various reasons for admitting the previously recorded statements of absent and uncooperative prosecution witnesses into evidence.

It would be an understatement to say the decision by the ICC judges to admit the prior recorded testimony of five uncooperative or missing prosecution witnesses in the William Ruto and Joshua Sang case has been met with a hostile reaction from a section of Kenyans. A typical reaction was that of Dennis Itumbi, the director of digital communication in the Office of the President of Kenya, who responded with a furious tirade on Twitter barely hours after the ruling was made public.

"Just read the 55 page, ICC Judges decision on the Ruto and Sang case, ICC has sank [sic] to a whole new low this evening", read his first tweet. "It is obvious that a witness who pre-recorded a statement in English but could only speak Swahili was coached", read another tweet mockingly hashtaged ‪#KangarooCourt‬‬. Itumbi's last tweet in the series summarised the central grievance that many critics have against last Wednesday's ruling: "Nothing justifies admission of witness statements that were written in boardrooms and out rightly denied on oath in the Court", he wrote.

Judges: Prior recorded statements were true and accurate

But the ruling by Judges Olga Carbuccia and Robert Fremr and the partly concurring opinion by Presiding Judge Chile Eboe-Osuji were more measured and well thought out than Itumbi and others would give them credit for. For example, the judges took pains to explain why they admitted the prior recorded witness statements even though they were not made under oath.

Applying a test that acknowledged the special circumstances in which the testimonies were made, the judges concluded that witnesses were not forced into making the statements, were provided with a translator and were fully aware that their accounts of events were to be presented in court as evidence:

"The Chamber observes that the prior recorded testimony was not given under oath. Nevertheless, it appears to have been taken in the ordinary course of Prosecution investigations by two investigators, was initialled on each page by the witness, investigators and interpreter and contains both a signed 'Witness Acknowledgment' as to its voluntariness, truthfulness and potential use in proceedings before the Court and a signed 'Interpreter Certification'. The Chamber finds this to be adequate to indicate the witness's acceptance that the prior recorded testimony was true and accurate", the judges explained.

Judges: Witness interference doesn't have to be linked directly to Ruto and Sang

Allegations of witness interference have featured prominently in the Ruto and Sang ICC case. When the Office of the Prosecutor (OTP) made its application seeking the admission of the previously recorded statements of as many as 16 witnesses in the case, it stressed that Rule 68 of the ICC's Rules of Procedure and Evidence allows for such inclusion if it can be shown the witnesses had been interfered with.

"Given the evidence implicating persons acting for the benefit of the Accused in the interference of the Corrupted Witnesses, the interests of justice would be best served by the introduction of their Prior Recorded Testimony into the Court record so as to prevent the Accused from benefiting from crimes against the administration of justice committed on their behalf ", the OTP argued.

Lawyers acting for Ruto and Sang, in their submissions challenging the OTP's request, had partly opposed the move by arguing that such statements lack "reliability and are hearsay evidence". They also contended the statements should only be admitted if the allegations of witness interference could be tied directly to the accused and proved beyond reasonable doubt. Judges knocked down both arguments.

Concerning the reliability of the statements, the judges wrote that, before determining the guilt or innocence of Ruto and Sang, they would look at whether "prior recorded testimonies go to the acts and conduct of the accused, and whether the evidence contained therein is corroborated by any other evidence admitted into the record".

Judges were also firmly of the view that the prosecution did not have to connect allegations of witness interference directly to Ruto and Sang, writing that "the Chamber does not consider that the unproven link between the improper interference and the accused affects its determination that the interests of justice would be served if this prior recorded testimony is admitted, as the Chamber does not consider that its admission is unduly detrimental to the accused".

Judges to take into account lack of cross-examination

One reason last Wednesday's ruling has been termed a "blow" to Ruto and Sang by much of the Kenyan press is that their lawyers will not get a chance to cross-examine the statements of the witnesses. As the Daily Nation's Walter Menya put it last week :

"This latest ruling is a setback to the defence teams as they will not get a chance to cross-examine the witnesses or test the authenticity of the statements, some of which might link the two accused to the planning and execution of the 2007/8 post-election violence", he wrote.

The judges, however, were careful to stress in their ruling that the statements had not been subjected to cross-examination by the lawyers for the accused and said they would take this account when considering the importance to attach to the testimonies.

Judge Osuji differed with his fellow judges who applied Rule 68, as requested by the OTP, to admit by the prior recorded statements of uncooperative or missing witnesses. He felt that the more appropriate rule to apply was Article 69(3).

"I do not share the view that the new r 68 applies. Indeed, in my view, r 68 does not apply in any of its generations. Article 69(3) is the more appropriate provision", he wrote.

The judge felt Article 69(3) was a better fit because it allowed the Chamber to take into account not just the direct attempts at witness interference but those actions and statements by government officials, MPs, community and church leaders as well bloggers that created a "dissuasive atmosphere" for witnesses:

"In my view, the interests of justice directly perturbed by the exceptional circumstances of this case, involving conducts capable of creating a dissuasive atmosphere for Prosecution witnesses, fully warrant the Chamber's exercise of the Article 69(3) authority, for purposes of having regard to the witness statements that the Prosecution urges the Chamber to consider for the truth of their contents", he explained.

*Ishmael Bundi is a pseudonym for a Nairobi-based blogger.

https://thehaguetrials.co.ke/articl...ted-recanted-witness-testimony-ruto-sang-case

 

[Ab-Titchaz]

Who and how ICC witnesses were bribed | The Star



KARIBU: Deputy President William Ruto is welcomed by a group of jubilant women during a fundraising for Muiri-ini Mixed School in Murang?a yesterday. Photo/Rebecca Nduku/DPPS

BY OLIVER MATHENGE
September 12, 2015

The ICC has for the first time revealed details of an alleged multi-million shilling bribery scheme leading to withdrawal of prosecution witnesses from the Kenyan cases.

Two Kenyans arrested by local police on July 30 are at the centre of the alleged criminal witness tampering that cost the prosecution six witnesses against Deputy President William Ruto.

They are lawyer Paul Gicheru and Philip Bett, named in ICC arrest warrants issued in March.

While issuing a summons in a decision made public Thursday, ICC judge Ekaterina Trendafilova outlined how and when the two allegedly executed the plan to corrupt six witnesses.

Claims of witness tampering and obstruction of justice are critical to assertions by ICC Chief Prosecutor Fatou Bensouda that witnesses against Ruto were systematically bribed and intimidated.

They buttress her quest to admit initial statements as evidence, though they have recanted or withdrawn. Admission of prior statements will be appealed by Ruto and co-accused Joshua Sang on grounds they violate ICC rules of evidence.

Both are accused as indirect perpetrators of orchestrating the 2008-08 post-election violence.

Lawyer Paul Gicheru is described as the manager of the scheme and the court says he used Philip Bett and Walter Barasa, whose arrest warrant was issued on 2013.

"The Single Judge considers there existed an organised and well-coordinated scheme involving both Paul Gicheru and Philip Bett, aiming at corruption of witnesses of the Prosecutor. While Paul Gicheru had an overall coordinating role in the effort to corrupt witnesses, Philip Bett participated under Gicheru's direction in implementation to certain witnesses," the ICC judge said.

According to the judge, Gicheru is accused of the crime of corruptly influencing a witness, by paying Witness P-397 Sh1 million and offering to pay the witness Sh5 million to withdraw.

Judge Trendafilova says this crime was committed from April 2013 to January 2014 in Eldoret.

The judge also says Gicheru either offered or paid Witness P-516 a bribe of at least Sh500,000 to withdraw.This happened in April and May 2013 in Eldoret, she says.

Between April and September 2013, Gicheru allegedly offered to pay Witness P-613 a bribe and made a job-offer inducement to withdraw.

The ICC document also indicates Gicheru allegedly paid Witness P-800 a bribe of between Sh1.5 million and Sh2.5 million around July 2013.

It says the witness was introduced to Gicheru by Bett, who took him to the office of Mitei & Company advocates where he signed an affidavit to withdraw from the case.

The ICC says around September 2013, Gicheru allegedly paid a bribe of Sh2.5 million to Witness P-495 and offered a job in exchange for withdrawal.

Between May and August 2013, Gicheru paid a bribe of either Sh1 million or Sh1.4 million to Witness P-536 as part of the scheme, ICC documents indicate.

The ICC claims the witness was contacted by Barasa numerous times between May and August 2013 for the purpose of offering a bribe.

"Walter Barasa explicitly promised Witness P-536 a payment of at least Sh1.4 million. Barasa told the witness Paul Gicheru was in charge but he did not contact the witness directly because he should not be exposed," Judge Trendafilova said.

Bett is to be charged with criminal responsibility for offences against the administration of justice as a direct co-perpetrator.

The ICC judge says alternatively, he can be charged with contributing in any other way to the commission or attempted commission by a group of persons acting with a common purpose of corruptly influencing witnesses.

It is alleged Bett was the link between some witnesses and Gicheru. He is said to have organised meetings between the witnesses and Gicheru and also used them to reach out to other witnesses.

http://www.the-star.co.ke/news/who-and-how-icc-witnesses-were-bribed#sthash.RAVGkq1X.dpuf